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Our Private Wealth & Inheritance team has specialist probate lawyers with experience in Estate Administration and offer an economic, personal and compassionate service.
What is a Grant of Probate?
A legal document that confirms a Personal Representative’s authority to deal with the assets in a deceased’s Estate. This allows the Personal Representative to close the deceased’s bank accounts, sell their property, settle their debts and any expenses associated with the administration of the Estate.
Where there is a valid Will, the Executor may need to apply for a Grant of Probate. Where the deceased died without a valid Will, the Administrator will need a Grant of Letters of Administration.
Why do you need a Probate Lawyer?
In order to deal with the administration of the Estate of the deceased the Personal Representative may be required to make an application for a Grant of Representation to the Probate Registry.
As part of the administration process our Probate Lawyers will ensure the following:
- That the appropriate person deals with the administration of the Estate;
- That all assets and liabilities are accounted for;
- That all Inheritance Tax (if any) is declared to HMRC;
- The remaining assets are encashed and transferred to the appropriate beneficiaries in accordance with the Will or rules of Intestacy.
Who is responsible for dealing with the administration of an Estate?
Where the Deceased has left a valid Will, this should appoint an Executor who is responsible for ensuring that the Estate is correctly administered.
Where the Deceased did not leave a valid Will, the rules of Intestacy will determine who is entitled to obtain Letters of Administration and thereafter administer the Estate in their capacity as an Administrator.
Ascertaining the assets and liabilities within an Estate
A Personal Representative have a duty to ascertain the extent of all assets and liabilities within an Estate, in order to ensure that these are declared to HMRC where required (and any Inheritance Tax is settled), as well as ensuring that all assets are collected in and liabilities are settled.
Where a Personal Representative is not confident that they have identified all of the assets and liabilities, it is recommended that a full Financial Assets Search is completed and that a Notice to creditors is placed.
Once the Personal Representative has identified all of the assets within an Estate, they must ensure that they obtain a valuation of these as at the date of the Deceased’s death.
Tax considerations with Estate Administration
There are three main taxes which must be considered when dealing with the Administration of an Estate. These are;
- Inheritance Tax;
- Income Tax; and
- Capital Gains Tax.
Once a Personal Representative has ascertained the extent of the assets within an Estate they must consider whether it is necessary to file an Inheritance Tax Account to HMRC and whether any Inheritance Tax is due. It is important to note that a Personal Representative has six months from the end of the month of the Deceased’s death to settle any Inheritance Tax that may be due, after which interest will start to accrue.
It is important that the Personal Representative claims all of the available Inheritance Tax allowances. These may include the Nil Rate Band and Transferable Nil Rate Band, as well as the Residence Nil Rate Band and the Transferable Residence Nil Rate Band. If you are unsure whether the Estate qualifies for any of these allowances, please contact our team of Probate Lawyers.
It is necessary to consider the Income Tax affairs of the Deceased for the period to the date of their death and for the period of Administration. The requirements for dealing with the lifetime tax matters will depend upon the complexity of the Deceased’s tax affairs. Sometimes the revenue deals with this as an automatic process, but in other cases it is necessary to submit a Tax Return.
The Estate may also give rise to a Capital Gains Tax liability if assets are sold during the Estate Administration for more than the Probate value. It may be possible to mitigate the liability and there are a number of deductions and allowances that the Estate may qualify for, so it is important to seek professional advice early on in the Administration period.
Finalising the Administration of an Estate
Once the Personal Representatives are confident that they have dealt with the Estate Administration matters in full and have settled all liabilities, they will be able to distribute the Estate. This may include encashing any remaining assets to be distributed amongst the beneficiaries, or if it is appropriate to do so, arranging to transfer the assets to the beneficiaries.
Thereafter, the Personal Representatives should ensure that Estate Accounts are prepared to document all transactions that have passed through the Estate.
Can a Grant of Probate be obtained when there is no Will?
It is not possible to obtain a Grant of Probate where there is no valid Will. Instead, an application for Grant of Letters of Administration can be made to the Probate Registry by the people entitled to the Estate under the rules of Intestacy.
Unlike an Executor, an Administrator takes their authority to administer the Estate from the Grant of Letters of Administration. Without the Grant of Letters of Administration, there is no authority to act.
For further information on Intestacy matters and applying for Letters of Administration, please contact our team of Probate Lawyers.
Do you always need a Grant of Probate to take control of the deceased’s assets?
Depending on the size of the Estate and the extent of the assets within an Estate, it may be possible to deal with the Estate without a Grant of Probate. For example, where there is no property and bank accounts with limited balances, it is likely that the Estate can be dealt with without a Grant of Probate. Further, if all of the accounts and assets are held jointly (to include property held as joint tenants), these assets will pass to the surviving co-owner under the right of survivorship, and often a Grant of Probate will not be required.
If you would like to find out more about the cost of Probate, please see our Probate & Estate Admin Pricing Guide.
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Probate Solicitors FAQs
Who can be an Executor?
Executors are appointed in a valid Will. To be an Executor, a person cannot be a minor, and must have mental capacity. An Executor can also be a Beneficiary under the Will.
I have been appointed as Executor but I don’t want this role, it is too much of a responsibility, what can I do?
It is possible for an executor to renounce Probate if certain conditions are met and they have not begun administering the estate or acting as an Executor however this means that you will lose your position as Executor and your control over the administration of the estate. An alternative is to remain acting as an Executor but to appoint us to act on your behalf and guide you through the process.
What happens if one of the executors of a Will doesn’t have mental capacity?
The other named Executors of the Will would be able to act instead. If there is only one Executor appointed then an application can be made for a Grant of Representation to act for the use and benefit of the person who lacks capacity. This is a complex application and may require the permission of the Court of Protection.
What happens if you can’t find the original Will but hold a good copy?
The Probate Registry usually insists on an original Will before issuing a grant of probate. However, it is possible to apply for a grant using a copy will, but this involves making a separate application to the Registry. The Registry will require detailed evidence which can be difficult to obtain. We have made successful applications to prove copy Wills so contact us if you would like to know more.
What happens if there is an error in the Will?
It depends on the type of error made. The courts only really have the power to rectify an error that is clerical in nature (misspelling of names for example, clear cases of missed words). Errors relating to the thoughts and intentions of the person who made the Will cannot be rectified. For example, if a Testator mistakenly leaves out a Beneficiary who they intended to benefit in their Will, the Will cannot be altered. If you believe there is an error in a Will and would like to make an application for rectification, please contact us.
How do we pay for inheritance tax before we have access to the Estate funds? Do we have to take out a loan?
If due, Inheritance Tax must generally be paid before you receive a Grant of Representation. Taking out a loan is one option to pay the bill. For certain assets such as property, it may be possible to pay the tax relating to those assets in 10 annual instalments. Fortunately, most banks have made an arrangement with the Revenue that they will release funds from the deceased’s accounts directly to the Revenue to allow payment of Inheritance tax before the Grant is issued.
Do we need to open an Executors account?
This will depend on the complexity of the administration and how many beneficiaries there are. One of the many benefits to instructing us to act on your behalf is that we can use the firm’s client account to collect in the assets. This can save the often difficult process of opening an executor’s account. We would always advise when acting as an Executor to keep your funds separate from the estate funds until the administration has completed.
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